FEDERAL COURT OF AUSTRALIA

Pirapakaran v Minister for Immigration & Multicultural Affairs [2000]

FCA 1820

MIGRATION – appeal from decision of primary judge dismissing application for review of decision by Refugee Review Tribunal – whether errors of law – whether failure to consider and make findings on evidence – whether Tribunal should have found that Tamils who experienced extortion were a particular social group – whether Tribunal failed to address evidence of threat to appellant’s daughter – whether Tribunal failed to address whether appellant would face detention and mistreatment in Colombo

Migration Act 1958 (Cth), ss 430(1)(d), 476(1)(a)

Alphonsus v Minister for Immigration & Multicultural Affairs [1999] FCA 289 distinguished

Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 cited

Santhikumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1777 cited

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 applied

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 cited

INTHUMATHY PIRAPAKARAN v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 583 of 2000

TAMBERLIN, RD NICHOLSON AND FINKELSTEIN JJ

SYDNEY

15 DECEMBER 2000

ON APPEAL FROM A JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

TAMBERLIN J:

1                     In this matter I have read in draft form the reasons of R D Nicholson J and I agree that the application should be dismissed with costs.  However, I differ from the conclusion reached by his Honour as to the adequacy of the reasons which were given in relation to the extortion issue.

2                     In my view it is apparent on the face of the decision that no reasons were given as required by s 430 of the Migration Act 1958 (“the Act”) for reaching the conclusion that the demands for money by the LTTE in relation to the applicant and his wife were not for a Convention reason.

3                     The content of the obligation under s 430 of the Act to give reasons was considered by the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at pars 44 and 59.  In the former paragraph the Court said:

“Section 430 does not impose any obligation on the RRT to come a correct decision, or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision if reached.  Subject to the qualification referred to in par 47 below, the section calls for a recording of matters that are essentially matters of fact, namely the decision to which the RRT came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based.”(Emphasis added)

4                     Their Honours in Singh also point out that even if the reasoning process is considered unsatisfactory it does not follow that there has been a failure to comply with the section so long as the reasons are disclosed.  Furthermore, there is no requirement under s 430 to give reasons for rejecting or assigning no weight to evidence or other material which is contrary to the conclusions reached.  The reasons, in other words, need not disclose the basis on which the RRT did not accept specific material submitted.

5                     Nevertheless, the majority judgment in Singh requires as a minimum that the actual reasons for coming to the decision should be set out.  Some reasoning process must be exposed which is sufficient for a dissatisfied party to decide whether there are grounds for review. 

6                     In the present case the RRT accepted that the applicant wife received LTTE demands for money soon after she returned from overseas in 1995.  After referring to the evidence the decision states that:

“The British Refugee Council states that Tamils returning from abroad are at particular risk of extortion, since there is a perception among the LTTE and government security forces that people who have been abroad will have saved a great deal of money.” (Emphasis added)

7                     The RRT went on to conclude:

“The available information leads to a conclusion that some people who are wealthy or perceived to be wealthy are the targets of extortion, regardless of race, religion, nationality or political opinion.  The Tribunal concludes that the applicants were targeted for financial demands, because, living and working overseas, they were perceived to be wealthy and not because they are Tamils or as punishment for matters going back more than ten years.  …

The Tribunal is not satisfied that these demands, or any other adverse attention by the LTTE in relation to the Applicant and his wife, were motivated for any Convention reason or that any feared harm on return for not having paid the money demanded is motivated by a Convention reason.” (Emphasis added)

8                     The extract above does not disclose how the Tribunal arrived at the conclusion that the present applicants were not targeted for financial demands because they are Tamils.  Reference is made to the “available information” in vague and general terms.  This is followed by the conclusion without any disclosure of the process of reasoning.  There is no specification of what available information or evidence is relied on apart from the quotation from the British Refugee Council.  The extract from the Council, in my opinion, assumes that Tamils are at a risk of extortion but that this risk is increased as a consequence of having been overseas.  This absence of a disclosed reasoning process is in respect of a central issue in the case, namely the existence of a Convention reason, and I therefore consider that there has been non-compliance with s 430(1) of the Act.  The “actual reasons for coming to that decision” required by the section and the decision in Singh are not disclosed.

9                     I agree with the conclusions of RD Nicholson J with respect to the second way in which the extortion threat was said to give rise to persecution for a Convention reasons, namely the possible recruitment of a child as a sanction.  In my view in this case the connection between the possible extortion demand and the possible recruitment of a Tamil child as a sanction in the event of non-payment is too remote from a Convention ground to form a basis for review in this case.

10                  On the relocation issue, although there is no reference in the reasons to the most recent material from the Department of Foreign Affairs and Trade of 5 March 1999 concerning the possibility of detention and, “in a small number of cases”, serious mistreatment, I do not consider that this constitutes reviewable error.  The Country Information Report is in general terms and does not provide a basis on which it could be said that there is a real chance of persecution because it is only in the event that a person is detained and cannot give a satisfactory explanation of his or her presence in Colombo that there arises a possibility they may be taken into custody.  There is no indication in the material as to what might be considered a sufficient reason for being in Colombo.  Insofar it is sought by Counsel for the appellant to apply this material to the circumstances of the applicant in the present case I consider the submission ill-founded because of the high degree of contingency, uncertainty and generality in that part of the report.  I can see no reviewable error with respect to the conclusion of the RRT that any of the applicants would be able to relocate free from persecution in the Sri Lanka.

Associate:

Dated:              15 December 2000

REASONS FOR JUDGMENT

R D NICHOLSON J:

11                  The appellant appeals against a judgment dismissing her application for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed the decision of a delegate of the respondent not to grant protection visas to the appellant and her husband and their two children.

12                  The appellant’s circumstances were succinctly stated by the primary judge as follows.  She and her husband are Tamils from the northern province of Sri Lanka.  They were married in 1984.  The day following their marriage they were detained, questioned and mistreated by members of the Sri Lankan Army because of their suspected association with the LTTE.  In October 1984 the appellant’s husband left Sri Lanka and went to Singapore.  In October 1985 the appellant left Sri Lanka and joined her husband in Singapore.  Shortly after that they moved to India.  The husband has returned to Sri Lanka on a number of occasions – in 1988, 1990, 1991 (twice), 1992 (twice), 1994 and 1995.  The appellant returned to Sri Lanka in 1988, at least once between 1988 and 1995, and in October 1995.

13                  The Tribunal was satisfied that the returns by the appellant and her husband to Sri Lanka demonstrated that at the time of those returns they did not have a relevant subjective fear for the purpose of the Refugees Convention.  It also made adverse findings as to the credibility of the appellant and her husband.  It found the appellant had embellished her account of her last visit in 1995 in order to enhance her claims for refugee status to remain in Australia.

14                  The claims which the appellant had made were, firstly, that a few days after their return to Colombo on the last occasion, the police had come and checked houses and she was questioned because she had not registered with the police as required.  The Tribunal did not accept this went beyond a routine check and questioning and did not accept she was threatened or mistreated on that occasion.  Secondly, she claimed that soon after that return the LTTE had demanded five hundred thousand rupees and said that if the money was not paid they would take her daughter (then aged 9 years) for their Youth Forces. 

15                  Despite its generally adverse conclusions in relation to the appellant’s credibility, the Tribunal accepted as plausible that she had experienced LTTE demands for money soon after her return from overseas in 1995.  The reasons of the Tribunal in this respect read:

“However, the Tribunal accepts as plausible that she did experience LTTE demands for money soon after she returned from overseas in 1995 – there is ample anecdotal evidence (including in accounts set out in Tribunal decisions) concerning extortion and demands for persons returning from overseas to LTTE-controlled areas.  This was also documented in 1992 by the Research Directorate of the Immigration and Refugee Board of Canada, Sri Lanka: Internal Flight Alternatives 1992, which noted:

            “… the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion since there is a perception among LTTE and government security forces that people who have been abroad will have saved a great deal of money.”

The available information leads to a conclusion that some people who are wealthy or perceived to be wealthy are the targets of extortion, regardless of race, religion, nationality or political opinion.  The Tribunal concludes that the Applicants were targeted for financial demands because, living and working overseas, they were perceived to be wealthy and not because they are Tamils or a punishment for matters going back more than ten years.  (Indeed, if the LTTE believed the Applicants to have betrayed them by giving information to the security forces, everything that is known about the LTTE suggests they would have taken more serious retribution against the Applicant wife than demands for money.)  The Tribunal is satisfied that in such circumstances those people subject to such demands are not a particular social group for the purposes of the Convention.

The Tribunal is not satisfied that these demands, or any other adverse attention by the LTTE in relation to the Applicant and his wife, were motivated for any Convention reason or that any feared future harm on return for not having paid the money demanded is motivated by a Convention reason.”

Extortion Issue

16                  For the appellant it is contended that there are two bases for finding the primary judge erred in not finding reviewable error of law in these reasons of the Tribunal relating to extortion.  The first is that there was a failure by the Tribunal to comply with s 430(1)(d) of the Migration Act 1958 (Cth) (“the Act”) in that it did not refer to the evidence or other material on which the findings of fact were based so there was reviewable error pursuant to s 476(1)(a) of the Act.  Alternatively, it is contended that if the sources upon which the Tribunal relied to reach its view on this issue were ambiguous, its reasoning was nevertheless in error of law because it did not explain why it made one available finding rather than another:  Alphonsus v Minister for Immigration & Multicultural Affairs [1999] FCA 289 par 37.

17                  The passage quoted discloses reliance by the Tribunal upon three evidentiary sources, namely (1) anecdotal evidence; (2) accounts set out in Tribunal decisions; and (3) the Internal Flight Alternatives document.  As the reasons of the trial judge state, there is no description by the Tribunal of either of categories (1) or (2).

18                  The third category is the document which addresses relatively safe places in the south and centre of Sri Lanka for Tamils fleeing the violence in the north and east.  Section 2.1 of the paper includes the following:

“Several sources indicate that the LTTE often use extortion to gain funds and services from Tamils and others in the north and elsewhere.  An LTTE minimum tax of two gold sovereigns (about CDN$300) per family has been reported, with those unable to pay allegedly facing imprisonment or being told to send a son or daughter to the LTTE army instead…Malcolm Rogers of the Sri Lanka Project based at the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion, since there is a perception among the LTTE and the government security forces that people who have been abroad will have saved a great deal of money…” (Emphasis added)

19                  I agree with the trial judge that the failure by the Tribunal to identify the anecdotal evidence in the Tribunal decisions does not give rise to a reviewable error under s 430(1)(d) of the Act.  His reason for so concluding was that the finding in question is that the appellant experienced LTTE demands for money soon after she returned from overseas in 1995.  That was a finding based upon the appellant’s evidence to that effect.  It is not based upon the anecdotal evidence or the Tribunal decisions, which, as the primary judge stated, only served to explain why the Tribunal was prepared to accept the applicant’s evidence in this respect when generally it was not prepared to do so.

20                  In relation to the alternative argument for error of law, it is said that there is ambiguity or obscurity in the Internal Flight Alternatives document in that it is not clear whether it is referable to people returning from abroad in general or Tamils returning from abroad in particular.  The passage quoted by the Tribunal states Tamils are at “particular” risk.  That passage however, when seen in the context of the above quoted extract from s 2.1, follows a reference to “Tamils and others”.

21                  There can be no doubt that the resolution of the posited ambiguity was material.  In Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 at 282 Burchett and Lee JJ recognised that extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention.

22                  On this point the primary judge took the view that the reference by the Tribunal to Tamils returning from abroad being at risk of extortion in “particular” was to be read as a contrast with Tamils who had not been abroad.  He therefore considered the Tribunal was justified in coming to the conclusion that the appellant and her husband were targeted for financial demands because, living and working overseas, they were perceived to be wealthy rather than because they were Tamils.  He therefore considered the case was akin to Santhikumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1777 rather than Alphonsus.

23                  In my view the primary judge was correct.  The reference to the Internal Flight Alternatives document satisfies the obligation to refer to material of which the conclusion was based in that it stated that “there is a perception among the LTTE and government security forces that people who have been abroad will have saved a great deal of money”.  That is a general perception, not confined to persons of Tamil ethnicity although putting them at “particular” risk.  This was not therefore a case where there was an ambiguity in the passage relied upon.

24                  Furthermore, the decision in Alphonsus was a decision of a single judge handed down prior to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 where the Full Court addressed the content of the obligation under s 430.  It accepted there is no specific requirement in the section for a tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  Whether a question of fact is material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.

25                  It is clear from the same reasons that the reasoning process which a tribunal adopts may require a decision on a question of fact in order to complete the logical chain that the tribunal has adopted as the basis for its decision.  Failure to set its findings in relation to that fact would involve a contravention of s 430(1)(c).  Additionally, it is clear that the requirement to set out findings on material questions of fact and to refer to the material on which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with.

26                  In my opinion this reasoning of the Full Court does not require a literal application of the words relied upon for the appellant in Alphonsus.  The Tribunal made a finding on the material question of fact, namely who were perceived to be the targets of extortion.  It based that conclusion on the available information, the clear inference being that it favoured the view of that information which it incorporated in its finding.  It was not required to give reasons for rejecting or attaching no weight to the evidence or other material which would tend to undermine any finding it made.  It follows that I do not consider that any reviewable error is made out in this respect under s 430 and s 476(1)(a) or under s 476(1)(e).

27                  I have had the advantage of reading in draft the reasons of Tamberlin J.  He refers to the passage in the reasons of the majority in Singh at par [48] in which it is stated that, inter alia, s 430 calls for a recording of “the actual reasons of coming to that decision.”  Prior to the Tribunal’s quotation of the statement of the British Refugee Council (quoted above and by Tamberlin J) the Tribunal referred to the anecdotal evidence on which it relied, including accounts in Tribunal decisions.  The reference to the Internal Flight Alternatives document was additional.  When the Tribunal went on to state “the effect of the available information” which led to its conclusion, it was giving its reasons for its conclusion, namely it relied on those sources.  In my view there was no relevant failure to give reasons.  The duty to give reasons is not to be read as itself being the source of the obligation to state the material on which findings are based.  What is required is that a tribunal disclose its reasoning process and that the Tribunal has done.  As was said in Singh at 484 par [62] “fundamentally the reasons need to reveal to the parties why the decision went the way it did”.  I consider these reasons did just that.  For reasons given above I consider the Tribunal additionally discharged the obligation to state the material on which its findings in that respect was based. 

28                  There is a further aspect to the extortion argument.  It is submitted that if the LTTE’s threat to forcibly abduct children for their Youth Force was a threat made only to Tamil families, then the appellant should have been found to be a member of a particular social group.  It is submitted that the Tribunal’s failure to address this matter prior to concluding that the appellant was not a member of a particular social group gives rise to reviewable error under s 430(1) and s 476(1)(a) of the Act or s 476(1)(e) of the Act.  The particular social group contended for was that of Tamils.

29                  In its reasons the Tribunal said there was no suggestion in the statements by the appellant that there had been any difficulties with the LTTE until the incident described in October 1995, being that in which the threat in relation to the daughter was alleged to occur.  It said:

“The Tribunal is aware that the LTTE recruited actively in the areas it controlled and that (as reflected in the evidence of both Applicants) it took the view that each family should provide a fighter for its forces.  This forced recruitment occurred regardless of the expressed or imputed political opinions of the Tamil youths concerned and was not a measure motivated to harm the Tamil youths concerned for any Convention reason.”

It is submitted for the appellant that the clear implication of this is that the possible recruitment of the daughter complained of by the appellant was recruitment which applied only to “Tamil youths”.

30                  The primary judge dealt with the issue on the basis that if the accompanying threat in relation to the daughter called into correctness the finding that the financial demands made of the mother were not for a Convention reason, on the assumption such a threat would not be made unless the family were Tamils, that did not rise above the making of an erroneous factual finding on the part of the Tribunal which is not itself a ground of review.

31                  The issue as now pressed was not put in that way to the Tribunal.  It was not, therefore, then a material fact which the Tribunal was required to address.

32                  Given the way that the issue arose before the Tribunal and the absence of evidence on the point it cannot be said that the Tribunal’s approach to this aspect gave rise to a reviewable error in either of the two claimed ways. 

Relocation issue

33                  The Tribunal concluded in relation to the issue of relocation as follows:

“The Tribunal is satisfied that in any event the Applicants would only be at risk from the LTTE in LTTE controlled areas in the north or east and that they could avoid this particular difficulty by living elsewhere in Sri Lanka.  Although the LTTE reportedly has the capacity to take action in government-controlled areas against important or high-profile targets, having regard to the individual circumstances of the Applicants the Tribunal finds that the chances of them being subjected to persecution by the LTTE in the Colombo region on return is not a real or substantial one.  It is not unreasonable for the Applicants to live in Colombo.”

34                  It is submitted for the appellant that reviewable error arises in two respects in relation to this finding of the Tribunal.  The first error is said to be pursuant to s 430(1)(c) and s 476(1)(a) of the Act in that the Tribunal failed to make a finding on the material question of fact whether there was real chance the appellant and her husband would face detention and mistreatment in Colombo.  It is said there was country information before the Tribunal which was relevant.  The first such information was to the effect that people are stopped randomly at checkpoints in Colombo and asked to show their national identity cards; if the card identifies them as being from the north or the east as the place of birth they will be required to explain their presence in Colombo; if they cannot do so to the satisfaction of the security personnel they may be taken into custody for further questioning.  The second piece of evidence was that approximately half of the people in detention in Colombo are mistreated.

35                  The material fact, which the Tribunal was addressing and was required to address, was whether the applicants could relocate to Colombo.  In its reasons the Tribunal referred to the visits which the appellant’s husband and the appellant had made to Sri Lanka on numerous occasions.  It therefore both addressed the material facts and the findings or evidence on which it was based.  As has been seen following Singh, it was not required to address inconsistent evidence.

36                  The second limb of the argument on relocation is that the Tribunal failed to determine what is likely to occur in the future in relation to Tamils living in Colombo:  Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.  What was required, and what it is said the Tribunal failed to do, was to make an estimation of the likelihood of one more event that would give rise to the occurrence of the event in relation to which the real chance was required to be assessed.  It is submitted that a relevant field of such inquiry is whether the LTTE might take control in Colombo in the foreseeable future.

37                  The material fact relied upon in this submission is not one that was so central that it was a legal error not to make reference to it.  It was not a fact which was so clear that, notwithstanding the absence of any reliance on it for the appellant, it was required to be dealt with by the Tribunal.  It follows that I do not consider there is any error of law arising in relation to the issue of relocation.

Conclusion

38                  It was accepted as common ground on the appeal that the appellant would be required to succeed on both the extortion and relocation issues in order to be successful on the appeal:  s 481 of the Act.  In my view the appellant succeeds on neither of the grounds of the appeal despite extensive and carefully formulated arguments put on her behalf.  The appeal should be dismissed with costs.

Associate:

Dated:              15 December 2000.

REASONS FOR JUDGMENT

FINKELSTEIN J:

39                  I agree with the reasons given by RD Nicholson J and with the orders he proposes.

Associate:

Dated:              15 December 2000